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The Battle Is On Between Yelp Free Speech Advocates and the Companies that Loath Them

Congressman Eric Swalwell with a friend

It appears that the online review service Yelp has been generating two opposing movements in the U.S., one which seeks to protect free speech and enable rank and file Americans to say whatever they want about the companies that sell them food and mow their lawns, and the other seeking to block those same Americans before the cause even more damage.

AFP reports today about an effort under way in Washington to pass a national law to ensure the right of Americans to post negative reviews on Yelp and any other website they wish to, without fear of reprisal from the companies they write about.

And at the same time, there’s a growing group of high-profile cases where companies claiming to have been damaged by bad reviews are looking to punish the reviewers, through fines or civil action.

According to AFP, Internet retailer KlearGear billed its customer $350 for violating an “anti-disparagement” clause they included in their online terms, and when the buyer would not pay—understandably—they were reported their credit card company.

And a New York hotel made it a habit to charge customers $500 for each negative review they “yelpped.”

These cases were cited this month by US Representative Eric Swalwell (D-CA) when he introduced a bill making it illegal for businesses to punish customers who write negative reviews on Yelp or TripAdvisor.

“No country that values free speech would allow customers to be penalized for writing an honest review, ” Swalwell said. His “Consumer Review Freedom Act” would nullify all those no-criticism clauses.

Eugene Volokh, a law professor at University of California-Los Angeles specializing in free speech issues, told AFP the debate is not over constitutional issues, no one, he argues, not even the companies who resent being criticized online, argues against the validity of free speech. The debate, instead, is over contract law, because “you can waive your right to free speech in a contract.”

Seriously? Even when it’s done in tiny print, or in a mile-long online document you need to click to get a desired product?

They could sneak confessions for murder in there for that matter.

Volokh argued that businesses have justifiably complained that some consumers seek to use reviews or threats of reviews to blackmail companies.

“I’m not sure what the right answer is, ” Volokh told AFP. “Generally speaking, people should be free to enter these contracts. But there is a strong case for pre-empting a contract (where the terms) are buried in fine print.”

So you’re not getting executed for the murder you confessed to today, while buying lingerie online. Tomorrow – who knows…

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